We Don't Need Guantanamo Bay

Here's how to hold the detainees elsewhere, without damaging U.S. security.

By

Thomas B. Wilner

Updated Dec. 22, 2008 12:01 a.m. ET

There has been a lot of media hand wringing recently about all the difficult problems that must be solved in order to close Guantanamo. It's not so complicated.

First, closing the detention facility there does not mean that we cannot detain people. Guantanamo is only a place. But it is a place chosen by the Bush administration for a single purpose: to avoid the law. Because it is outside our borders, the administration argued that prisoners held there were beyond the jurisdiction of our courts and the protections of the Constitution. The Supreme Court has now rejected those arguments.

In the meantime, Guantanamo has stained our reputation around the world.

There are approximately 250 prisoners still at Guantanamo. They fall into two basic categories. The first, by far the smallest (probably less than 40 detainees) is made up of people accused of being al Qaeda fighters who have planned or engaged in violent acts against innocent civilians. Doing so is a crime, and anyone who intentionally engages in or materially supports those acts should be tried, convicted and imprisoned. Our courts are fully capable of doing so. They have rendered 145 convictions in terror-related cases in the past. And their decisions have far greater credibility than any jerry-rigged commission system ever could.

There is no need for "new rules" to handle classified information. Congress has already established detailed rules and procedures in the Classified Information Protection Act. They carefully balance the defendant's right to be informed of the charges against him with the government's need to protect classified information from disclosure. Those procedures have worked in the past and would work again. There is also no need for specialized, extra-constitutional "national security courts."

Some worry that we won't be able to convict hardened al Qaeda criminals because the evidence against them was extracted by torture and can't be used in court. If that is a problem, it exists only for a limited group. We can avoid the problem in the future by not torturing people. In any event, no actual case has been identified where the government would be precluded from obtaining a conviction against a known al Qaeda operative because most of the significant evidence was obtained through torture. True, Khalid Sheikh Mohammed said a lot of things under torture. But he has also freely admitted that he is an al Qaeda fighter.

The second, and by far the largest, category of prisoners at Guantanamo consists of more than 200 men who are being detained for allegedly having fought in Afghanistan. A country may detain individuals who fight against it in an armed conflict, either as members of the enemy's armed forces or as civilians who directly participated in the hostilities. These people are not criminals; they are detained to prevent them from returning to the fight.

We now know, however, that many Guantanamo detainees never fought against anyone; they were simply turned over by Northern Alliance and Pakistani warlords for bounties of up to $25,000. For almost seven years they have been held without a fair hearing or opportunity to demonstrate those facts. The Supreme Court ruled last June in Boumediene v. Bush that these men have the constitutional right to prompt hearings to determine if there is adequate reason for detaining them. Since that decision, lower courts have reviewed the cases of 23 detainees and have found no credible basis for detaining 22 of them.

Very few court hearings have taken place, however, as government lawyers sought delay after delay. That might be an appropriate legal strategy in some cases, but it is simply outrageous here, where people have been held for nearly seven years. The government should promptly present its cases.

But our government should do more than that. A team of qualified, nonpolitical officials from the appropriate agencies should promptly conduct a detailed review of the classified files of each detainee to weed out the many baseless cases, so that there is no need to present them to courts conducting a habeas corpus hearing. Such a review could be completed within a few weeks. No outside "blue-ribbon" panel is required. No delay in the ongoing cases is necessary.

At the end of the reviews and hearings, a small number of detainees may be found to have participated in hostilities in Afghanistan. Yet after almost seven years we should take a hard look at the likelihood any of them would return to the battlefield. Many were conscripted into service against their will, or served only as cooks or drivers or clerks, or were involved in tribal warfare rather than a fight against us. Some participated in the battle only in the sense that they were fleeing Afghanistan after the bombs began to fall. Why should these people continue to be imprisoned while the two detainees the government first charged with war crimes as Guantanamo's "worst of the worst," David Hicks and Salim Hamdam, are now home with their families after serving their sentences?

The great majority of the detainees -- close to 200 -- want to return to their home countries. Those countries want them back and will take responsibility for them. We can reduce Guantanamo's population significantly simply by sending home detainees who had no business being imprisoned in the first place. And we should.

Setting aside those who may be subject to criminal charges, we would then be left with about 50 detainees who cannot return home because of fear of torture. Many, such as the Chinese Uighurs, are admittedly innocent people detained by mistake. Other countries are unwilling to take them because we've been unwilling to do so ourselves. To convince others to accept them, we must accept some ourselves.

Attorney General Michael Mukasey has opposed that, stating in a recent op-ed in this paper that these people "should not be permitted to jump the immigration line and enter this country." How myopic and callous! These people have been wrongly detained by our country for almost seven years. Granting some of them sanctuary is the least we can do, particularly when it will help close Guantanamo. It is a problem the incoming Obama administration can readily solve.

Mr. Wilner was counsel of record to Guantanamo detainees in the Supreme Court's Rasul v. Bush and Boumediene v. Bush rulings.

This copy is for your personal, non-commercial use only. Distribution and use of this material are governed by our Subscriber Agreement and by copyright law. For non-personal use or to order multiple copies, please contact Dow Jones Reprints at 1-800-843-0008 or visit www.djreprints.com.